Fortini v. Murphy

• Decision Date: 29 March 2001
• Docket Number: No. 00-2305,00-2305
• Citation: 257 F.3d 39
• Parties: (1st Cir. 2001) ROBERT E. FORTINI, III, PETITIONER, APPELLANT, v. PAUL B. MURPHY, RESPONDENT, APPELLEE. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 39

257 F.3d 39 (1st Cir. 2001)

ROBERT E. FORTINI, III, PETITIONER, APPELLANT, v. PAUL B. MURPHY, RESPONDENT, APPELLEE.

No. 00-2305

United States Court of Appeals For the First Circuit

Heard March 29, 2001

Decided July 27, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge] [Copyrighted Material Omitted] Robert L. Sheketoff with whom Sheketoff & Homan was on brief for petitioner.

Thomas W. Dee, Assistant Attorney General, Criminal Bureau, with whom Thomas F. Reilly, Attorney General, was on brief for respondent.

Before Boudin, Chief Judge, Lynch and Lipez, Circuit Judges.

Boudin, Chief Judge

This is an appeal by Robert Fortini from a federal district court order dismissing Fortini's petition for a writ of habeas corpus. Fortini is currently serving a life sentence, having been convicted in state court of second degree murder. Fortini's claim depends critically on the facts of the case which we describe in some detail, identifying the few significant details that were disputed.

In 1992, Fortini lived in a second-floor apartment with his girlfriend, Jacie Hall, and her cousin, Tammy Peckham, in Plymouth, Massachusetts. Between 5 p.m. and 9 p.m. on June 22, Ceasar Monterio-- Fortini's eventual victim--came to the apartment on at least three occasions looking for Peckham. On one occasion Fortini went downstairs and told Monterio that Peckham was not at home. Shortly after Monterio's last appearance, Hall heard the occupants of a car shouting profanities as the vehicle drove past the house and she told Fortini about the incident.

After spending the evening watching television and cleaning his shotgun, Fortini went to bed at 11:30 p.m. At 11:50 p.m., he was awoken by a car horn and a male voice, screaming curses and racial epithets towards the house (Fortini is white; Monterio was black). Fortini got out of bed, got dressed and proceeded down to his first-floor front porch. ¹ After sitting on the porch for a period, he returned to his apartment and, at 12:48 a.m., called the police to report the earlier disturbance. The police did not dispatch officers to the house, but the dispatcher told Fortini that if he got a license "plate or something . . . [the police could] check them out."

Fortini then retrieved his shotgun and ammunition and returned to his seat on the downstairs porch. Although the steps to the second floor were lighted, the porch was not. At approximately 1:15 a.m., Monterio and a friend (Dana Lopes) returned to the house. According to Fortini, he heard two sets of footsteps and a whispered conversation. He then heard a voice say, "watch this shit, we're going to wake some motherfuckers up." Shortly thereafter, he saw someone (who proved to be Monterio) start up the stairs moving rapidly to the porch.

As Monterio reached the porch, Fortini stood up and took a couple of steps forward towards the porch steps with the shotgun in his hands. According to Fortini, he then yelled "hey, get the fuck out of here" to the person on the porch. ² In response, Fortini said that Monterio stared at Fortini and the gun, centered his attention on the gun, and then lunged towards Fortini and the weapon. Fortini took one step backwards and fired, striking Monterio in the chest and killing him almost instantly.

Fortini was charged with murder in Massachusetts Superior Court. In pretrial proceedings, Fortini argued that he believed Monterio was attempting to take the gun away from him and that he shot Monterio in self defense. In support of this theory, Fortini filed a motion in limine asking to introduce evidence of Monterio's acts only five to seven minutes before he stepped onto Fortini's porch and was killed. The evidence that Fortini wanted to offer was this:

According to witnesses, shortly before Monterio arrived at Fortini's house, Monterio ran onto a basketball court where four white males were playing night basketball. Monterio then struck, or attempted to strike, all four men. After his companion (Lopes) pulled him away, Monterio yelled, "I'll kill them all. Remember my face, I'm Ceasar Monterio. I'm the baddest motherfucker in town." Immediately after the confrontation, Monterio and Lopes walked towards Fortini's house. On the way, a police officer heard Monterio again yell, "I'm bad. I'm the baddest motherfucker in the world." Monterio arrived at Fortini's house a few minutes later.

In his pretrial motion, Fortini argued that the evidence of this episode was admissible because the fight and the shooting had a "temporal and schematic nexus," and that the evidence--by showing that Monterio had been violent that night and was acting in "hot blood"--supported in various ways Fortini's claim of self defense. ³ Rejecting these grounds for admission, the trial court excluded the evidence in a pretrial ruling, finding that Fortini was not at the time of the shooting aware of Monterio's actions on the basketball court (a point that Fortini did not dispute), see Commonwealth v. Fontes, 488 N.E.2d 760, 762-63 (Mass. 1986), and that Fortini was not the subject of Monterio's threats, see Commonwealth v. Rubin, 63 N.E.2d 344, 345-46 (Mass. 1945). After a seven-day jury trial, Fortini was convicted of second degree murder and given the mandatory sentence of life in prison.

Fortini appealed to the Massachusetts Appeals Court, arguing for the first time that the decision not to admit the disputed evidence was not only error under state law but violated the federal constitution as well. In his brief, Fortini stated that the evidence was "relevant, trustworthy, and critical to the defendant's defense," that its exclusion was inconsistent with Chambers v. Mississippi, 410 U.S. 284, 303 (1973), and therefore that his constitutional right to due process had been violated. In its appellate brief, the Commonwealth argued that the trial court's ruling was correct as a matter of evidence law, but it did not mention Fortini's constitutional claim, Chambers, or the Fourteenth Amendment.

The Appeals Court affirmed the conviction and, like the Commonwealth's brief, only addressed Fortini's claim in terms of Massachusetts evidence law. The court said that the trial court might have erred in not admitting the evidence of Monterio's behavior, Fortini, 692 N.E.2d at 113 n.6, but it found (in substance) that any error was harmless. The Massachusetts harmless error standard for objected-to, non-constitutional trial errors is that "the error did not influence the jury, or had but very slight effect." Commonwealth v. Alphas, 712 N.E.2d 575, 580 n.7 (Mass. 1999). The Appeals Court gave two reasons:

First, the Appeals Court noted that Fortini was permitted to introduce other evidence of Monterio's actions which supported Fortini's contention that Monterio had acted aggressively that evening. Specifically, the court pointed to the evidence of Monterio's shouting and cursing at the house earlier in the evening. Thus, the court held, Fortini was already able to establish Monterio's "state of mind" and the evidence of the basketball court incident "was to some degree cumulative." Fortini, 692 N.E.2d at 113.

Second, and more central to its decision, the court found that Fortini's "appearance with a loaded shotgun on the darkened porch, coupled with his decision to eschew any retreat to the safety of his apartment, were deliberate acts of defiance, not defense." Fortini, 692 N.E.2d at 114. On this premise, the court held that even if it was error to exclude the basketball court incident, Fortini had suffered no prejudice because he could not, as a matter of law, show that he acted in self defense in light of his decision to "lie in wait" on the porch rather than retreating to the safety of his apartment when given the opportunity. Id. The Supreme Judicial Court denied further appellate review. Commonwealth v. Fortini, 699 N.E.2d 850 (Mass. 1998).

Fortini filed a petition for writ of habeas corpus, which the federal district court dismissed on the grounds that he had not exhausted available state remedies as the statute governing habeas petitions requires. 28 U.S.C. §§ 2254(b)(1). Although conceding that Fortini's state court briefs contained "isolated references" to his federal constitutional rights, the district court said that they did not include a "developed argument elaborating any particular claim." The district court observed that the state appeals court had not addressed Fortini's constitutional claim, suggesting that it had been unaware that such a claim was being pressed.

Fortini now appeals to this court. He argues that the district court erred in finding that he did not properly present his constitutional claim in state court and, in addition, says that excluding the basketball court episode denied him due process under Chambers and had a likely effect on the jury's verdict. The Commonwealth, while partly addressing the merits of Fortini's claim, rests primarily on the district court's waiver argument and on the strict standards for habeas now applicable under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See 28 U.S.C. §§ 2254(d)(1) (Supp. II 1996).

1. The threshold question in this case is whether Fortini exhausted his state remedies. The Commonwealth says that Fortini "did little if anything to properly alert the Commonwealth's courts that he was asserting a federal constitutional claim" and thus he is not entitled to habeas review. The district court agreed, finding that while Fortini had argued that the exclusion of the basketball court incident implicated state evidence law issues, he had not adequately raised the constitutional claim. We review de novo the district court's dismissal on this ground. Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997).

Exhaustion requires that a petitioner have "fairly presented to the state courts" his constitutional claim. Picard v....